Alkahest my heroes have always died at the end

I can’t turn around anymore without hearing something new about how colleges and universities are public enemy number 1 with the copyright industry.  In early February, the Recording Industry Association of America released a top 25 list of the schools to which they have sent notices of alleged copyright infringement.  Right after that, they started announced that they would start suing students and that they were going to send “pre-subpoena” and “settlement” notices to campuses.

The “pre-subpoena” notices try to circumvent the normal process of data destruction that happens at any provider of internet services.  The service provider only needs the information for a short period of time, so after that time has passed, the information is automatically destroyed.  The pre-subpoena notices try to put a burden on universities to preserve data because they now know that the information is likely to be subpoenaed if there is a lawsuit.  To my knowledge, these are, at best, questionably legal and even with recent changes to the Federal Rules for eDiscovery are not likely to place a real burden on colleges.  You’ll notice that the RIAA hasn’t sent anything like a pre-subpoena notice to non-educational internet service providers such as Verizon and Time Warner.

The second new type of notice is a John-Doe settlement offer.  It is sent to a university and references an IP address and a time and alleges that copyright infringement occurred from that computer at that time.  No evidence is included.  The notice asks the university to forward these settlement offers to the students whose computers are referenced.  Students receiving these settlement offers can go to the referenced website, enter the case number, check the box that says they will sin no more and enter a credit card for absolution.  It’s like the selling of indulgences by organized crime.

Some schools have taken the position that they should not forward the notices, however, they are complying with the pre-subpoena notices above.  This seems likely to put their students at even more risk because they won’t be able to settle before being sued, however, you are purposefully keeping the information that will allow them to be sued.

While all of this has been going on, the copyright industry has been meeting with congress, decrying the evils of college campuses and what we aren’t doing (which incidentally is exactly what commercial ISPs aren’t doing).  There have been two recent, interesting outcomes from these hearings.  The first is that the copyright industry has been pushing campuses to install network devices that prevent copyright infringement, preferably by blocking all peer to peer programs.  Most colleges have refused to do this for a number of reasons: cost, lack of reliability, the potential to damage our safe harbor for “conduit” activities under the DMCA, and the fact that p2p programs have substantial non-infringing uses.  Congress is trying to remove at least one of these with a bill that would allow schools to apply for grants to fund copyright compliance programs – code for devices to block p2p.

The second item of note is that congress requested the Motion Picture Association of America (MPAA) produce its own top 25 list using the same methodology as the RIAA.  That list was released and we are on it.  Of course, as with the RIAA’s list, the MPAA can send however many notices to schools that they want.  Being on or off of the top 25 list doesn’t say anything about the amount of actual infringing going on, just how much you were notified about.  Both industries tend to focus on recent content: new music, new movies, new television shows.  Given the current state of music, it may actually be a complement to the taste of our students that we were on the MPAA’s list, but not the RIAA’s.

I suppose at this point I should note that I am not in favor of copyright infringement.  My main concerns are:

1. Why is Congress and the copyright industry singling out academic ISPs?
2. Copyright law, as written, does not meet the needs of consumers.

Colleges and universities should be treated like any other internet service provider.  This is how we are defined under the Digital Millennium Copyright Act (DMCA).  Under the DMCA, as an ISP, we are given a number of safe harbors from liability, including a limitation of liability on any infringing activity for which we are a conduit.  That is to say, any activity that we did not initiate nor interfere.  If the RIAA or the MPAA or Congress wants to limit copyright infringement, then it should address the infringers themselves.  If they don’t want to do that, then they should address all ISPs equally, commercial and academic.  After all, the RIAA sued 18,000 people last year and only 1,000 of them were college students.

For years, copyright infringement was a subject that only conglomerations of copyright holders cared about.  The industries met together, balanced each others needs, wrote the rules together and then had congress sign off on what they wrote.  That worked pretty well up until the point that we had peer to peer filesharing.  P2P as a general technology fulfills one of the great promises of the Internet.  It breaks away from the old client-server model of computing allows all computers to become both client and server simultaneously.  This allows an individual computer to be a peer to what required a server before and completely changes how we should approach copyright law.

Copyright law was founded on the belief that you had to preserve the rights of an author in order to encourage progress.  This was extended to preserving the purchased rights of producers and distributors.  Now that all computers can be content distributors, copyright law needs to be updated.  You can’t hold a 17 year old kid to the same level of responsibility that you would a large commercial operation designed to print CDs/DVDs and sell them on the streets of New York.  We’re not talking about counterfeiters, we’re talking about average people.

Copyright law has been written to protect the profits of multi-billion dollar corporations.  It wasn’t written to protect the rights, or even the long-term interests, of citizens.  That needs to change and until it does, we will continue to hear about lawsuits, extortion and questionable tactics from the RIAA and the MPAA.

Oh, and to answer my earlier question, the RIAA and the MPAA are going after colleges because that’s where the greatest bulk of young people are.  They believe that if they can head it off there, then perhaps they can get a handle on the general p2p problem.  They also believe that they will get more traction in congress by beating up on colleges.  If the RIAA and MPAA went after all ISPs equally, then congress would see it as a question of the competing interests of two businesses and would probably decide that the DMCA struck a reasonable balance in terms of the limitations on liability.  But colleges and universities are seen as in loco parenti (surrogate, as opposed to crazy, parents), so we are responsible for the actions of our students.  However, we are also a business and can be compelled to install software or devices that would never be required of a student’s real parent.